Criminalization of HIV Exposure and Transmission

In the United States and in several other countries, there has been a question for the legal system regarding the transmission of human immunodeficiency virus infection. Specifically, if a person with the disease exposes his or her partner to the disease through sex, should there be civil or criminal charges against the party with the infection?

It is important to distinguish those cases in which one partner actually transmits the disease to someone from occurrences of exposure to disease without transmission.

Intent to inflict bodily harm

Criminal law considers whether the defendant has a blameworthy state of mind when the incident occurs, and this is an issue with sexual violence, assault, or rape. In other words, a rapist will likely not disclose to the victim that he is HIV-positive, and he will probably not use a condom. When he transmits human immunodeficiency virus to the victim in a willful, intentional, and malicious manner, such a case will naturally fall under criminal law.

Moreover, laws which address intent to inflict bodily harm on another may be sufficient to initiate these criminal cases when the victim acquires the disease from the perpetrator. Most cases of HIV transmission, however, do not occur through malicious intent to harm the other sexual partner. They usually take place via consensual sex, and the person who transmits the disease likely may not have even known his or her own HIV status.

If the partner with the disease knows his or her HIV status and discloses it to the other person, and the couple uses a condom, there may be some degree of legal protection for the one who was HIV-positive before the sexual encounter. The parties should discuss sexuality and share responsibility for prevention of disease spread.

In some instances, the person with the disease does not understand how human immunodeficiency virus transmits, and this lack of knowledge will likely lessen his or her liability for the transmission of disease. These cases, in which there is not a willful intent to inflict bodily harm on the other partner via disease transmission, may become civil rather than criminal matters. The defendant receives legal charges of negligence or recklessness in the transmission of human immunodeficiency virus infection.

Woman as defendant in HIV transmission case

Women who become defendants in civil or criminal cases which involve the transmission of human immunodeficiency virus infection tend to be in a precarious situation. First, they are more likely to get the blame for disease transmission than the man because women tend to know their HIV status more often than men do. This is because of regular gynecologic care which women receive, and they obtain health prevention materials about sexually transmitted diseases.

Women will probably have an HIV test whenever they become pregnant, but men may not choose to go for the test, and men have very little need to see a physician for reproductive care. Moreover, women may be reluctant to disclose to their partners that they are HIV-positive because the man may make accusations of infidelity and become violent.

Women who disclose their HIV-positive status may encounter employment discrimination, housing discrimination or eviction, loss of child custody, rejection from family and friends, and loss of property and inheritance.

If the man does not have an HIV test before a sexual encounter with a woman who knows she is HIV-positive, this does not prove that a subsequently positive HIV test for the man is the woman’s liability. He may have had the disease before they had sex, or he may have acquired it from a third party. Hence, it is important to avoid a conviction in court without sufficient evidence.

It is also true that the HIV test may take 6 to 12 weeks to seroconvert or become positive after a person acquires the disease. In uncommon cases, seroconversion will take as long as six months to a year. Courts must take this into account because the time to seroconversion yields a negative HIV test even though the patient already has the disease.